PRECLUSION STEP BY STEP

1) Res Judicata (Claim Preclusion)

a) Final/Valid Prior Judgment: RJ applies even when case is on appeal just needs trial court judgment to exist b) On the Merits: Did the court discuss the substantive issues in the case? Judge/jury trial = yes. Motion for improper venue / jurisdiction = no. 12(b)(6) = probably yes, because liberal amendment policies. c) Same Claim: A party who has asserted a right to relief arising out of a particular transaction/occurrence must join all claims arising from it, or have those claims barred by RJ. Concerned just with whether the claim COULD have been brought, not whether it actually was. d) Same Parties: Parties are in privity with each other. e) Exam: Often seen with joinder in a 2-part question of (1: Could this claim have been brought initially? -> 2: Does RJ bar this claim from being brought in a subsequent action?)

2) Collateral Estoppel (Issue Preclusion) CE applies when:

a) Same Issue: Issue in 2nd case must be same as issue in 1st case. b) Litigated: Issue must have been actually litigated. c) Decided Against: Issue was decided on in a valid, final prior judgment, against the precluded party. d) Necessary: The decision on the issue in the prior action was necessary to the courts judgment.

3) Nonmutual Collateral Estoppel (Issue Preclusion)

a) Defensive: P sues D1 and loses on an issue. P sues D2 later on the same issue. D2 can estop P from re-litigating the issue. Easier to justify than offensive. b) Offensive: P1 sues D and wins on an issue. P2 sues D later on the same issue. P2 may sometimes estop D from re-litigating the issue that D lost to P1. Difficult to justify sometimes. c) CE Rule: All 4 elements of CE apply here as well. d) Nonmutual: A party not in the original suit seeks to use CE against one of the parties in the original suit. e) Rule of Thumb: Did the party being estopped have a full and fair shake at litigating the issue before? Factors: i) Incentive: Did the estopped party have a strong incentive to litigate the issue before?

ii) Procedure: Was the procedural opportunity to litigate as broad before? iii) Inconsistent Judgments: Any prior inconsistent judgments in the case history? iv) (Offensive Only) Joinder: Should P have joined in the earlier action?